An examination of the evidence and the authorities satisfies me that the parties by their agreement did not intend to become partners, as between themselves, in the possession and ownership of the hides and leather.
Such intent where it can be ascertained will control, except perhaps as to creditors having no knowledge of the limitation. A partnership in profits may exist without including title to the stock out of which such profits arise, if such be the agreement of the partners. The most that can be claimed in this case is a partnership in profits. In reality it was a mode adopted for payment of services rendered and material used by defendant, in adding value to plaintiffs’ property.
All the circumstances surrounding this transaction repel the presumption that the defendant was to acquire any title to the property. He was not even entitled to the possession, except for the purpose of bestowing his labor upon it. As soon as that was done it was to be returned to plaintiffs that they might sell it.
Indeed the defendant by his answer does not pretend that he was a partner with plaintiffs, or was joint owner with them of the leather in controversy.
*427This subject is discussed in 1 Parsons on Contracts (5th ed.), 157-160, and note m; Smith v. Watson (2 Barn. & Cr., 401); Story on Part., §§ 27, 36, 38; Burckle v. Eckhart (3 N. Y., 138); Conklin v. Barton (43 Barb., 435); Penfield v. Dunbar (64 id., 239).
In this respect, I think, the learned judge at the Circuit was led into an error, for which the judgment should be reversed.
From the same considerations, it must follow that defendant could not recover, in lieu of a return of the property, any thing beyond the price per pound for tanning, while the judgment below gives to him the full value of the tanned leather. At most he had only a lien for the cost of tanning. But, by the contract, he had no lien even for that. He was bonnd to send the leather to plaintiffs when tanned. When the leather is demanded he does not claim to hold it by virtue of any lien, although such lien is set up by way of answer. It would seem that the expenses of tanning were to be paid like commissions for buying and selling, out of the proceeds of sales of leather made by plaintiffs.
But, irrespective of this question of lien, the judgment must be reversed and a new trial granted, costs to abide the event.
Present — Learned, P. J., Bocees and Boardman, JJ.Judgment reversed and new trial ordered, costs to abide event.